Work on Trial is a collection of studies of eleven major cases and events that have helped to shape the legal landscape of work in Canada. While most of the cases are well-known because of the impact they have had on collective bargaining, individual employment law, or human rights, less is known about the social and political contexts in which the cases arose, the backgrounds and personalities of the judges and the litigants, the legal manoeuvres that were employed, or the ultimate fate of all those who were involved. These studies, written by some of Canada’s leading labour and legal historians, provide this context. Beginning with Toronto Electric Commissioners v. Snider, one of the earliest and most important cases involving the division of powers in the Canadian federation, to the events leading to the articulation of the “Rand Formula” in the immediate post Second World War period, and on to the struggles of women workers in the late 20th century in challenging the continuing employment practices based on hegemonic gender-based assumptions, each study tells a compelling story, rich in detail and full of perceptive insights into the complex relationship between law and work.

While slavery in Canada was abolished in 1834, discrimination remained. Race on Trial contrasts formal legal equality with pervasive patterns of social, legal, and attitudinal inequality in Ontario by documenting the history of black Ontarians who appeared before the criminal courts from the mid-nineteenth to the mid-twentieth centuries.

Using capital case files and the assize records for Kent and Essex counties, areas that had significant black populations because they were termini for the Underground Railroad, Barrington Walker investigates the limits of freedom for Ontario's African Canadians. Through court transcripts, depositions, jail records, Judge's Bench Books, newspapers, and government correspondence, Walker identifies trends in charges and convictions in the Black population. This exploration of the complex and often contradictory web of racial attitudes and the values of white legal elites not only exposes how blackness was articulated in Canadian law but also offers a rare glimpse of black life as experienced in Canada's past.

Just launched by Mitra Sharafi, University of Wisconsin-Madison Law School, is the website South Asian Legal History Resources. It includes a number of research tools on the history of law in South Asia (and especially its colonial period). Among the posted materials are:

* a research guide to using case law from colonial South Asia (written for non-lawyers)* a list of abbreviations used in South Asian case law citation* a list of published primary sources (including legislation, case digests, law reports and law journals)* a list of titles held in the library of a colonial solicitors' firm in Bombay, c.1911* a list of titles of articles in seven leading colonial law journals, 1891-1947 (none of these journals is available electronically)* admission register entries of South Asian law students at the Inns of Court in London, 1863-1947 (including demographic information)

This month's issue of Common-Place describes researcher Amy Werbel's efforts to uncover surviving examples of the materials that U.S. Postal Inspector Anthony Comstock famously attempted to censor. A professor of fine arts, Werbel is interested in Comstock's "aesthetics," and how over a period of forty years those aesthetics "served . . . as the national line between virtue and vice."

Her archival journey also bears on the sort of questions that are the bread-and-butter of legal historians: How did Comstock's targets avoid and evade prosecution? How did Comstock enforce (or fail to enforce) the sweeping law he convinced Congress to pass? How should we make sense of his enforcement choices? Most important of all, perhaps, her research raises a tricky methodological question: How do we find evidence of what people in the past worked so diligently to purge from the record?Hat tip: book forumImage credit

Recently posted is a call for papers on gender and European legal history, which is important both for the conference it heralds and for news of the network of scholars that is organizing it.

The conference is "East Meets West: A Gendered View of Legal Tradition." It will be the sixth conference of the research network Gender Difference in the History of European Legal Cultures. It will be held at the Central European University in March 10-12, 2011. It is sponsored by the university's departments of Gender Studies, History, Legal Studies, and Medieval Studies.

The "geographical frame" of the conference is "a global perspective with a basis in European legal cultures and with a special focus on Eastern Europe." Its chronological frame is from the Early Middle Ages to the Twentieth Century. The conference language is English.

The organizers have announced three themes: (1) "Gendered Legal Cultures: Theories and Methods"; (2) Gender, Community and Law, including property rights and economic influence, gendered work roles and guild membership, labour movements and the state; and (3) "Migration and competing legal cultures - towards a global perspective. " Presentations may take the form of papers, workshop presentations or panel discussions. The organizers stress that presenters should leave "plenty of room for discussion."

Here is the call's interesting description of the sponsoring "network" and its history:

The European network was founded at a conference entitled ‘gender difference in European law/Geschlechterdifferenz in europäischen Recht’ held at the Max-Planck-Institut für europäische Rechtsgeschichte, Frankfurt, Germany, in February 2000 and organized by Heide Wunder, then professor at Kassel University. The network was named “Geschlechterdifferenz in europäischen Rechtskreisen / Gender differences in European legal cultures” at first but has since changed name to the international network “Gender Differences in the History of European Legal Cultures”.

The first conference has since been followed by four conferences held around Europe. The second conference took place at the Centro per gli studi storici italo-germanici, University of Trent, Italy, in October 2002, under the title ‘Il coste delle nozze/der Preis des Heiratens‘ and organized by professors Silvana Seidel Menchi and Diego Quaglioni. At the closing of this conference the theme of the third conference was agreed to be ‘Less Favored - More Favored: Gender in European Legal History, 12th - 19th Centuries / Benachteiligt - begünstigt: Geschlecht in der Europäischen Rechtsgeschichte, 12. - 19. Jahrhundert.’ This conference took place at the Royal Library, Copenhagen, in September 2004 and was organized by dr. phil. Grethe Jacobsen, professor Inger Dübeck and (then) Ph.D. candidate Helle Vogt. The fourth conference, at the Institute of Mediterranean Studies, Rethymno, Crete, in September 2006, had as its theme ‘Gender, family and property in legal theory and practice: The European perspective from the 10th to the 20th century’ and was organized by professor Aglaia Kasdagli.

At the conclusion of this conference the themes for the fifth conference was decided to be 1) Gender constructions in non-juridical discourses and their impact on jurisprudence and jurisdiction; 2) Comparing legal cultures: Differences and similarities, concepts and methods; and 3) Gendered legal cultures in global perspective: Encounters and conflicts, transfers and interactions. The fifth conference was held in Frankfurt and organized by Dr. Karin Gottschalk, Goethe University of Frankfurt am Main, Germany. It had as its title ‘New Perspectives on Gender and Legal History: European Traditions and the Challenge of Global History’.

The network has its roots in the current flowering, often gendered, research in European Legal history, found in several European countries. The organizers of the conference have been especially committed to bring together young scholars and established scholars from all areas of Europe in the hope that it will inspire them to include a gendered perspective in their research and also situating their work in a broad European context. The search for common traits across chronological and geographical borders will also reveal which local features are unique and therefore of general interest. As can be seen from the places where the conferences have been held, the network has moved across Europe and away from Western Europe, which traditionally has been the focus for much legal history. The papers from the conferences has covered topics in European legal history ranging in time form the Early Middle Ages to the 20th century, and geographically from Iceland to Turkey. A few papers have dealt with Baltic and Eastern European legal history. However, much more awareness of this research is needed and the organizers expect that by placing the next conference in Budapest we will attract papers as well as scholars dealing with these topics

[The Department of History at Princeton University announces the conference "Colonies and Postcolonies of Law, to be held March 18, 2011. Here is the call:]

The conference addresses the centrality of law in the construction of colonial rule. We aim to examine how colonial law emerged as colonialists interacted with diverse populations in the colonies. The study of the relationship between law and colonialism has taken two broad trajectories. On one hand, scholars have highlighted how law provided the instruments for the creation of the colonial state, allowing it to exercise a vast amount of power in restructuring the colony. Conversely, law opened up avenues of resistance for colonized populations. This conference aims to go beyond this dichotomy by focusing on law as a site of constant negotiation which produced new forms of bureaucracy and documentation practices. As colonial legal systems cast long shadows and formed the bedrock of the national legal systems today, this conference will also examine how these colonial legal regimes influence postcolonial nations. The last few years has seen a growth of interest in colonial legal history to which this conference hopes to contribute by bringing junior scholars together in conversation.

NYU Professor of History Lauren Benton will deliver a keynote address at the conference.

Sub themes

Defining Legality: Criminals, Outlaws and Rebels

New categories of legality emerged during the colonial period such that criminals and rebels became interchangeable notions. What makes a ‘rebel’ and a ‘criminal’? What counts as evidence of a crime? How were penal regimes created? How did colonial regimes contribute to the construction of the international laws of war and human rights?

Competing Legitimacies: Religious Law and Colonial Authority

The colonial state grappled with existing legal systems in the colony. Some systems were delegitimized while others were bolstered under the purview of colonial rule. By privileging certain forms of legitimacy, colonial states challenged traditional norms and institutions such as customary rights and religious laws. Why were certain legal systems granted legitimacy under the colonial rule? How did certain religious texts and figures emerge as more authoritative than others? How did the process of translation change understandings of key religious concepts? What forms of tensions were created between traditional authorities and the emerging modern legal profession in the colony?

Private Lives and Public Law

The modern colonial state crafted new boundaries between the public and private. For example, colonial projects of social reform transformed marital and kinship relations. How did the colonial legal regime come to delineate the private and the public sphere? How did colonized populations engage with this process of delineation? How did the changing legal order affect colonial subjects, in particular women, who often emerged as the sites for legal reform? Did postcolonial nations adopt colonial legal conceptions of the private and public spheres?

Constructing Borders

Colonial law demanded certainty of boundaries and jurisdiction, yet it operated within a plural legal order and had limited capacity to police frontiers. How were legal borders fixed? How did colonial populations choose between competing forums granted by neighboring jurisdictions? How did the emergence of the postcolonial nations complicate colonial mapping andjurisdictional jostling?

Law and Capital

The centrality of trade and capital to the colonial project is increasingly overshadowed by cultural and social histories. Law, in the form of land revenue, forest laws and mercantile regulations, was in fact, central to the economic project of the colonial state. Can law be used to bring economic histories in conversation with the social and cultural? What economic practices came to be legitimized with the colonial reordering of the economy? How did colonial law engage with older kinship based mercantile networks such as those of the Arabs, Chinese, Parsis and Marwaris?

Paper proposals should include a title, a 350-word abstract, institutional affiliation and contact information. Please submit proposals to coloniesoflaw@gmail.com by December 15th 2010.

Organizers: Nurfadzilah Yahaya and Rohit De, History Department, Princeton University

This short paper discusses international law and statutory interpretation in the Supreme Court’s recent decisions. It argues that the last decade has been one of ferment. Some Justices, most prominently Breyer and Ginsburg, have invented new canons to determine the extraterritorial reach of statutes. Other Justices, most prominently Scalia and Thomas, have relied on the presumption against extraterritoriality, though shifting it in important ways. Neither camp has made much use of the Charming Betsy canon because it would allocate prescriptive jurisdiction in a way that neither finds desirable. The paper will appear in a forthcoming book on the history of international law in the U.S. Supreme Court to be published by Cambridge University Press in 2011.

Since early 2009, many historians of the American founding period have watched with mixed feelings of perplexity, frustration, bemusement, and alarm as a vigorous and inchoate popular movement has erupted on the national political stage. Generally referred to as the Tea Party, this movement presents itself as a nonpartisan expression of general public anger at politicians of all stripes, so long as they are deemed part of the American political “establishment.” In particular, these activists seek to label themselves as the true legatees and representatives of America’s Founding Fathers, and their professed goal is to bring American politics back to the true basis of the creed on which the Founding Fathers declared independence from Great Britain and launched their great experiment in self-government. Lowering taxes, limiting government, and reminding elected officials that they hold their offices not as of right but on loan from the electorate--these are core principles of those who identify with the Tea Party movement.

It is all too easy for historians to deride the Tea Party for what many scholars deem to be its threadbare, caricatured, and idealized vision of the American past--of the American Revolution and the Constitution, of the worldview of the Founding Fathers that they believe guided those events, and of the gap separating past and present. To her credit, in her new book The Whites of Their Eyes: The Tea Party’s Revolution and the Battle over American History, Jill Lepore largely manages to resist that temptation. Instead, she has written a book that is far more useful and interesting. Through her prologue, five substantive chapters, and epilogue, she has crafted a classic “braided narrative” juxtaposing the imagined history that inspires Tea Party activists in Boston, Massachusetts (the home of the original Tea Party of December 1773) with the actual history of the Boston Tea Party, the events preceding and succeeding it, and the lives and ideas of the actual key players in the era of the nation’s founding.

You can read the full review here. Bernstein's parting remark is that, in all likelihood, "those who will read The Whites of Their Eyes already will agree with it, and those who need to read it most are least likely to pick it up."

Wednesday, October 27, 2010

[Here's a call for papers for the 2011 edition of the SFSU conference "A Question of Rights."]

San Francisco State University will host a conference September 15-16, 2011 exploring the question and place of rights in history, politics, and society.

Rights, both individual and collective, have long been a theme in American society, often seen in conflict with state power. We welcome papers on assertions of rights by insurgent groups, resistance to rights claims, and governmental efforts to suppress or promote rights, in areas including but not limited to: civil liberties; disability rights; labor and economic rights; feminism and antiracism; immigration; environmental justice; access to healthcare; the prison industrial complex; sexual orientation; the stateless; and human rights.

Our goal is to bring together a wide variety of people from a range of academic, activist, legal, and community spaces to examine the place of rights within both the context of American society (as situated within a boarder global political community). To that end, we welcome participation from historians, both senior and junior scholars, graduate students, community advocates, archivists, and lawyers. We invite proposals panels, or roundtables. Though we prefer complete panels, we will consider individual papers. We also welcome workshops with pre-circulated papers, or sessions in which panelists assess the state of debate on a topic. All submissions will be peer reviewed by our program committee.

The deadline for submission of panels, consisting of an abstract of 1000 words for panel and workshop proposals and a one-page CV for each participant, is March 15, 2011. Send your proposals to Christopher Waldrep, Department of History, San Francisco State University, San Francisco, California 94132 or via email to cwaldrep@sfsu.edu

Taming Alabama focuses on persons and groups who sought to bring about reforms in the political, legal, and social worlds of Alabama. Most of the subjects of these essays accepted the fundamental values of nineteenth and early twentieth century white southern society; and all believed, or came to believe, in the transforming power of law. As a starting point in creating the groundwork of genuine civility and progress in the state, these reformers insisted on equal treatment and due process in elections, allocation of resources, and legal proceedings.

To an educator like Julia Tutwiler or a clergyman like James F. Smith, due process was a question of simple fairness or Christian principle. To lawyers like Benjamin F. Porter, Thomas Goode Jones, or Henry D. Clayton, devotion to due process was part of the true religion of the common law. To a former Populist radical like Joseph C. Manning, due process and a free ballot were requisites for the transformation of society.

A reviewer writes: "Most of the people who are profiled in “Taming Alabama” were lawyers. Pruitt argues that most sprang from the Whig tradition, which favored education and believed that government could help improve society through its laws and standards." More.

Tuesday, October 26, 2010

Our spammers in the comments seem to have become more subtle. Or perhaps this blog just attracts high quality spam. At any rate, if you are not a spammer, but an actual reader, and you try to post a comment but it does not appear, please alert us, either by posting a comment about it -- along with your original comment, or by emailing us. It is perfectly fine to link your comment to your bio or your own blog, but comments with links are most likely to get mis-identified as spam.

This is the introductory chapter of Parchment, Paper, Pixels: Law and the Technologies of Communication. It discusses the impact that technological revolutions (in particular, writing, printing, and the Internet) have had on civilization in general and our legal system in particular. Wills, for instance, are quintessentially written text. The legal profession has developed distinct literary conventions regarding the drafting and interpretation of wills, often to the befuddlement of individual testators. If the textual practices of willmaking are often too strict, those relating to contracts may sometimes be too lax. Electronic contracting has taken off with vengeance and, while convenient, can sometimes make it too easy to "agree" to terms hidden under a computer icon. Statutes, like wills, are highly textual. The rule of law has been promoted by having them written down or, in modern times, being made widely available in printed form or on the Internet. Yet what they gained in stability they have lost in flexibility. Finally, judicial opinions or judgments, which were once considered a type of unwritten law, are rapidly becoming textualized, especially in the United States, but also to a lesser extent in England. As a result, legal reasoning may eventually be supplanted by close reading of the text, a trend likely to be exacerbated by accessing opinions online.

It therefore matters - sometimes a great deal - whether a law or legal transaction is chiseled into stone, written on parchment, printed on paper, or embedded in pixels on a computer screen.

Proposals are invited from ASLH members interested in joining an ASLH-sponsored panel at the annual meeting of the Australia and New Zealand Law and History Society (ANZLHS) to be held mid-December 2011 in Brisbane, Queensland (Australia).

As part of its policy of international outreach, the ASLH has entered into an agreement with the ANZLHS by which each association will sponsor a panel to take part in the other association's annual meeting. In 2011 the ANZLHS annual conference will be held in Brisbane, Queensland. Precise dates have not yet been determined, but the conference will be held in mid-December. The theme of the meeting is "Private Law - Public Lives." The theme description is asfollows:

"The 2011 ANZLHS conference theme examines the social dimensions of private law. Does private law as much as public create core social values? How did private law in areas such as the laws of marriage, property, succession, labour or contract, for example, shape colonial and postcolonial societies? What are the wider social implications of family law as well as commercial, corporations, competition or insurance law in other jurisdictions, such as the United States and the EU? How have courts and judges understood and shaped private law?"

Papers for the ASLH panel will be selected with the following criteria in mind: appropriateness to the conference theme; historiographical/substantive originality; thematic unity for a single panel; and capacity to engage with an Australia-New Zealand-Oceania scholarly audience.

In addition to papers addressing the conference theme, the ANZLHS Conference organizers welcome other papers on legal history for consideration. Paper proposals submitted for the ASLH panel but not selected will be forwarded to the conference organizers for their consideration.

Participants in the ASLH panel will be expected to seek funding support from their home institutions to meet the costs of conference attendance. The ANZLHS has agreed to waive the conference registration fee for the ASLH panelists. Some limited "top-up" support will be available for those participants whose home institution will not meet their full expenses.

Proposals should consist of (1) a 250 word synopsis of the proposed paper, and (2) a US$ estimate of the prospective participant's expenses accompanied by a reliable estimate of the US$ funds available to the prospective participant to meet those expenses.

Proposals should be sent by email attachment to ctomlins@law.uci.edu. Deadline for receipt of proposals is 31 December 2010.

“Rights in Conflict” is the Institute for Constitutional History’s Robert H. Smith Seminar for Spring 2011. It will be taught by Linda Greenhouse, Knight Distinguished Journalist-in-Residence and Joseph Goldstein Lecturer in Law at Yale Law School, and Reva Siegel, Nicholas deB. Katzenbach Professor of Law at Yale University. According to the announcement:

This seminar will explore elite and popular debate leading to recognition of reproductive rights under the U.S. Constitution, with the goal of examining how constitutional decisionmaking unfolds through social conflict. Using the emergence of the claim for a right to abortion as an historical case study, we will probe the relation between social movement, politics, and law over the decades. How did mobilization and counter-mobilization shape and limit the law? What might this analysis suggest about the future trajectory of claims to sexual freedom, including same-sex marriage? The discussion will draw in part on material collected in a recently published documentary history, BEFORE ROE v. WADE: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Greenhouse & Siegel, 2010), as well as subsequent court cases.

The announcement continues:

The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their ho/me departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at MMarcus@nyhistory.org until November 22, 2010. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to MMarcus@nyhistory.org.

The seminar will meet at the New-York Historical Society, 170 Central Park West, New York City. Thursday afternoons, 3:00-5:00 p.m., January 20 and 27, February 3, 10, 17, and 24.

The Center for the United States and the Cold War supports research on the Cold War at home and the ways in which this ideological and geopolitical conflict with the Soviet Union affected American politics, culture, and society. We will be offering a dissertation fellowship and a post-doctoral fellowship. Applicants for the dissertation fellowship must have passed their comprehensive examinations and expect to complete their dissertations within two years. The post-doctoral fellowship is designed for junior scholars who will have received the Ph.D. by August 31, 2011. A dissertation fellow will receive a stipend of $25,000 for a nine-month academic year; a stipend for post-doctoral fellow is $45,000; and travel grants are $2,000 per month. This year there are at least five travel grants, one post-doctoral fellowship, and one dissertation fellowship available.

Applicants for the Frederic Ewen fellowship should submit proposals that seek to explore the ways that fear of enemies abroad, and/or anxieties over perceived threats at home, have jeopardized the university as an institution that depends on free inquiry and expression. The fellowship offers a $45,000 stipend for a nine-month academic year. Post-doctoral scholars, public historians and documentary media makers (film, video, etc.) working on projects that seek to understand the connections between academic freedom and the broader fabric of democracy are encouraged to apply.

Applicants should submit a curriculum vitae, a short project description (5 pages maxi-mum), a statement describing the relevance of the collections of the Tamiment Library to the project, and two letters of recommendation. Writing samples are welcome (10 pages maximum).

Submit material by February 1, 2011 to Zuzanna Kobrzynski at zk3@nyu.edu.

In its Empagran decision in 2004, the US Supreme Court decided that purchasers on foreign markets could not invoke US antitrust law even against a global cartel that affects also the United States. This article, forthcoming in a volume dedicated to the history on international law in the US Supreme Court, presents three radically different readings of the opinion. The result is that Empagran is a decision that is transnationalist in rhetoric, isolationist in application, and hegemonial in its effect. A decision with a seemingly straightforward argument is found riddled in the conflict between these different logics. A decision with few references to international law displays deep links to some of the most pressing international law issues. A decision with a forward‑looking globalization rhetoric finds itself mired in history. A decision praising harmony displays somber parallels to decisions refusing interference with the evil of slave trade. This has implications for our understanding of international law today, and for its place in its own history.

Sunday, October 24, 2010

"All great changes in human affairs happen in history and through time," David W. Blight writes in a review of The Fiery Trial: Abraham Lincoln and American Slavery by Eric Foner in the San Francisco Chronicle. "Lincoln's ideas regarding race and slavery underwent significant change over the course of his political career; indeed, Foner argues that Lincoln's 'greatness' rests in his 'capacity for growth,' not in the consistency that many have wished to see in him." Foner has written "a historian's book, a lesson in context" according to Blight, though it is one that should be widely read. The Fiery Trial is a "distinctive and valuable book, showing persuasively that we should not understand Lincoln from the myth-glazed outcome reading backward, but from the beginning, through one transformative event after another, looking forward." Read the rest here.

Words have meanings, often more than one. Many words also have evocative power and communicative reach that go well beyond the restricted use of these terms with well-defined professional delineation. In 1911, when Christabel Pankhurst asserted in a speech in London that “we are here to claim our right as women, not only to be free, but to fight for freedom,” adding that this is “our right as well as our duty,” she communicated a great deal. And she did so despite the difference between her use of the term “right” and any legal concept of “right” that could be sustained as a claim in any then-existing court of law. Women did not have the right to vote in Britain in 1911, nor would that right be achieved until seventeen years after Pankhurst’s speech, in 1928.

An immediate question that is raised by this duality concerns the connection, if any, between the two types of uses of the concept of rights—the one based on legal force and the other offering moral and political motivation. It would be odd if the two concepts resided in isolation in a totally separated universe. In fact they do not; but it is just as important to recognize that they reflect distinct notions of rights as it is to try to understand the connections between them. This plurality of meanings has been quite central, over several centuries, to debates on rights, and it is particularly important to see its relevance and its reach in understanding the nature and standing of what we now call “human rights.”

These paragraphs are a fair representation of what Sen discusses in the first Part of the essay, but the piece is in fact much broader. It goes on to explore, among other things, the "originalist" approach to constitutional interpretation and judicial consideration of foreign law.

Thursday, October 21, 2010

Have you ever come across a dollar bill lying on the ground? At the risk of sounding hopelessly nerdy, that's how I feel when I encounter a good annotated bibliography. I don't go looking for them, but when I find one, I feel the sort of joy that can only come from the combination of saving time, discovering new leads, and seeing a complicated body of knowledge break down into manageable pieces.

My most recent "find" was when reading the seventh edition of a constitutional history classic, The American Constitution: Its Origins and Development (Alfred Kelly and Winfred Harbison, revised by Herman Belz). The bibliography is over 80 pages and proceeds chronologically, with useful topical subheadings (e.g., "Judicial Power and Constitutional Law in the Marshall Era," "Civil Liberties and Modern Constitutionalism"). Readers, have you come across any other good ones lately?

As a side note, I think that an annotated bibliography is a great assignment for graduate students. When tasked with creating one my first semester of graduate school, I was completely befuddled (and I'm sure my final product showed it), but I learned a lot in the process.

Wednesday, October 20, 2010

The Modern Author at Work on Madison Avenue has just been posted by Catherine Fisk, University of California, Irvine School of Law. It appears in MODERNISM AND COPYRIGHT, Paul K. Saint-Amour, ed., (Oxford University Press, 2010). Here's the abstract:

This chapter of a book on modernism and copyright uses the work relationships of creative employees at the J. Walter Thompson advertising agency to explore the roles of the law and legal norms in mediating creation, ownership, attribution, and public recognition as dominant features of twentieth century authorship. In both legal and literary studies, scholars have tended to focus on the relationship between copyright law and an individual, literary model of authorship. This scholarly focus on authors and owners has been incommensurate with the relatively small percentage of twentieth-century creative people whose efforts were rewarded through copyright ownership. Once we realize that much modern creativity is exercised in an employment setting where salaried creators sign away their rights in their work as a condition of hire - sign away, in effect, their very status as authors - we can see that the attribution of work, rather than ownership of the intellectual property represented in it, defines the modern connection between many creators and work of all kinds. The chapter argues that copyright is not the only place, perhaps not even the most important place, to study the role of law in shaping the nature of creative work in modernism. The project I undertake here is to show that modernism did not coincidentally grow at the same time as the corporatization of creativity. Rather, they unfolded in complex relation to each other. In the world of commercial cultural production, authorship has been an unstable blend of individual and collective creation and attribution. What authorship has meant was determined largely outside the purview of copyright law, and often outside any other formal law, bouncing endlessly back and forth between the individual and the corporation.

If you are on the job market this year, or otherwise sharing your new work in legal history, I hope you aren’t asked a question in this way. But I would think about how to answer a question like this before heading off for your first interview.

“What’s the cash out value?” might be translated into: “how does your work matter for contemporary law and policy.” Or perhaps: “I care about law as a means of improving society. Why should I care about your work?”

I was asked the “cash out” question once while workshopping a paper on Thurgood Marshall’s experiences in Kenya in the early 1960s. When discussing serious historical scholarship, you might be tempted to answer: you can’t “cash out” this kind of work; the question misses the value of history to the intellectual project of legal studies. But while interviewing you don’t really have that luxury. You need to speak to the questioner’s underlying concern: why is this work important, or why should the questioner be interested in it, and therefore in you as a colleague?

This sort of question can come up for interdisciplinary folks in other fields. If it’s not apparent on the face of your project how it is relevant to legal scholarship, anticipate the issue of how your work informs your scholarly identity as a law professor (as compared with a psychology or economics professor). This doesn’t mean that your scholarly agenda has to be framed in a way that responds to the hot topics of the day in the legal academy. But it does help for you to be clear about how a scholarly interest in law has informed the way you frame your research agenda.

And then there’s the question: “what’s the value added?” Which you can reinterpret as: “how does your research, or your methodology, further the analysis of some legal problem, beyond what the existing scholarship shows?”

So although the framing of these sorts of questions (and the use of econo-speak) can be jarring for law-&-humanities types, the underlying query is one you should welcome. It’s an invitation to explain why your work matters – something anyone laboring on a Ph.D. dissertation or other large scholarly project will have thought a lot about.

How have you responded to these kinds of questions? Legal historians on the job market would benefit from your ideas.

Michael Perino, St. John’s University School of Law, has published The Hellhound of Wall Street, Here is Penguin's somewhat breathless description:

In The Hellhound of Wall Street, Michael Perino recounts in riveting detail the 1933 hearings that put Wall Street on trial for the Great Crash. Never before in American history had so many financial titans been called to account before the public, and they had come within a few weeks of emerging unscathed. By the time Ferdinand Pecora, a Sicilian immigrant and former New York prosecutor, took over as chief counsel, the investigation had dragged on ineffectively for nearly a year and was universally written off as dead.

The Hellhound of Wall Street provides a minute-by-minute account of the ten dramatic days when Pecora turned the hearings around, cross-examining the officers of National City Bank (today's Citigroup), particularly its chairman, Charles Mitchell, one of the best known bankers of his day. Mitchell strode into the hearing room in obvious disdain for the proceedings, but he left utterly disgraced. Pecora's rigorous questioning revealed that City Bank was guilty of shocking financial abuses, from selling worthless bonds to manipulating its stock price. Most offensive of all was the excessive compensation and bonuses awarded to its executives for peddling shoddy securities to the American public.

Pecora became an unlikely hero to a beleaguered nation. The man whom the press called "the hellhound of Wall Street" was the son of a struggling factory worker. Precocious and determined, he became one of New York's few Italian American lawyers at a time when Italians were frequently stereotyped as anarchic criminals. The image of an immigrant lawyer challenging a blue-blooded Wall Street tycoon was just one more sign that a fundamental shift was taking place in America.

By creating the sensational headlines needed to galvanize public opinion for reform, the Pecora hearings spurred Congress to take unprecedented steps to rein in the freewheeling banking industry and led directly to the New Deal's landmark economic reforms. A gripping courtroom drama with remarkable contemporary relevance, The Hellhound of Wall Street brings to life a crucial turning point in American financial history.

Lawrence A. Cunningham, George Washington Law, has posted a book notice here. Professor Perino's discussions of the book are available from the websites of NPR and Bill Moyers Journal.

Tuesday, October 19, 2010

﻿We don’t usually carry (or even get) author’s queries, but I was intrigued by one from Williamjames Hull Hoffer, Seton Hall University, which just went out over H-Law on the history of the American Society for Legal History. Hoffer is particularly eager to learn about “the membership and leadership of the ASLH over its existence. Has there always been a large majority of law professors both in the membership and in leadership positions?” He also asks whether there are any histories of the Society he should know about?

It happens that the University of Illinois does hold a collection of much more could be said from oral histories and a search of file cabinets and hard drives. As told to me, the modern era started when some ringleaders–most of them history PhD’.s--piratically commandeered a genteel society of antiquarian Philadelphia lawyers. Doubtless a sober history would be less swashbuckling.

Legal history graduate students: the annual meeting of the American Society for Legal History is just a month away (November 18-21, 2010). It will be held in Philadelphia, a city that I promise you is fun, easy to get around, and filled with historical gems. The conference is very graduate student-friendly. ASLH is committed to supporting junior scholars and encourages their participation. The program includes opportunities for graduate students to mingle with each other and to meet more established scholars.

Via H-Law, we have learned that the conference hotel is now sold out, but the ASLHwebsite offers some ideas about where to find less expensive alternatives. For those coming from schools in the region, you could also easily make a day trip, using megabus, boltbus, or New Jersey Transit/SEPTA. All drop off at points that are either close to the hotel or close to a subway line.

The Code owes its revolutionary nature to its form. It is a statute, but one intended to encompass all of the rules of French civil law. It thus breaks with prerevolutionary law, which comprised numerous legal sources. The Code would become the main source of civil law for all citizens, without exception, and it would be applicable to the entire French territory. The revolutionary consequence of this legislative triumph was that diversity would henceforth give way to unity and uniformity – unity and uniformity imposed and controlled by the State.

Although the Code was revolutionary in its form, it was not revolutionary in its substance. On the one hand, the Code Napoléon is extremely reactionary because it in large part restates the content of pre-revolutionary law. On the other hand, authoritarianism is one of its main characteristics. However, codiﬁers did not do away with all revolutionary legislative reforms; they would not have been able to even if they had wanted to. Only that which they deemed to be reconcilable with their ultimate goal – order – would be preserved.

This article also attempts to assess Bonaparte’s contribution to the codification project. While it appears that Bonaparte’s ideas had little inﬂuence on the content of the Code, the codiﬁcation project itself would never have been completed had it not been for his authoritarianism.

What is it to be an American? What is it to be a Jew? What commitments and loyalties and what traits define each, and do they clash? What commitments and traits do we inherit and what do we choose? How does one embrace being an American while keeping one’s separate identity as a Jew?

These questions fueling the politics of Jewish-American identity in the Progressive Era, and these four sketches have illustrated my notion that law and lawyers and the contending ideas and ideals of the era’s legal culture – about individuals and groups and the boundaries of public and private action - played important, protean parts in the ways Jews answered them. Of course, the paths along which late 19th and early 20th century American Jews wedded Jewishness and Americanness were complex and various. These sketches have left many paths unexplored. Most Jews were not lawyers, and most Jewish lawyers were not as powerful as these four. Because they were powerful, however – as litigators, advocates and publicists (in the nineteenth-century sense of producing public discourse about international law), policy makers and high state officials, founders and leaders of some of the most important national Jewish organizations – they helped fashion important and durable terms of Jewish and immigrant entry and belonging to America.

Why should law and lawyers have been especially important? Part of the answer is that lawyers wielded the language of state power; and the state was in the business of labeling and identifying newcomers and determining who was welcome. But law was important for deeper reasons. Nation states were under construction in Western Europe as well as in the U.S. in the 19th century. Only here, however, were the felt attachments of identity and ideology that were coming to be called nationalism so deeply bound up with the very legal texts on which the state rested. Only in the U.S. was the nation - “We, the People” - so deeply constituted and defined by law. Over the course of the 19th century, the U.S. Constitution became the text of a “civil religion.” To make one’s way into the legal elite was to gain not only a prestigious career but also access to the very language of national belonging and, perchance, opportunities to interpret, elaborate, and even shape its meaning....

Defending the rights of Jews and other racial others, Wolf, Straus and Kohler associated American Jewishness with the liberal Constitution, affirming Jews’ place at the heart of American civil religion and national identity by taking a leading part in defining and defending the liberal nation and the rights of “others” to equal standing in it. That Constitution, in its individualism, its promise of religious liberty, equal rights and careers open to talent, its condemnation of “class legislation” in general and racial classifications in particular, harmonized with their Reform Jewish outlook and their social aspirations. These lawyers melded the Reform Jewish and classical liberal constitutional creeds into an American Jewish identity.[8]

What I’ve called Wolf, Straus and Kohler’s classical liberal grammar of Jewish American identity might have sounded like this, if one of them were to have brought its basic structure of ideas and feelings to the surface: We, Reform Jews, have stripped away the old, anachronistic features of Judaism as a communal form of self-government (and what some of us even call a “ghetto religion”). “Enlightened” and “modern,” we no longer conceive our faith in the old “legalistic” and “ritualistic,” “Oriental” ways; we hew to its “universal” and “Western” “core.” Our faith, then, has a structure akin to our Protestant neighbors’. Religion occupies the private sphere of our lives, as it does theirs. It is not (any longer) government; and government has no business with it. By the same token, we no longer see ourselves as a separate people, race or nation. Our “Zion” is “America.” Our “law and Covenant” are the Constitution....

“Before Brown: Heman Marion Sweatt, Thurgood Marshall, and the Long Road to Justice” is Gary Lavergne’s treatment of Sweatt v. Painter, an important 1950 Supreme Court decision on the way to Brown. Lavergne, director of admissions research at the University of Texas, tells an interesting and important story that fills many gaps between Plessy and Brown.

In the review, Russell writes:

Lavergneʼs at his best placing Sweattʼs struggle within the political split among African-Americans. Marshall, the NAACP, and eventually Sweatt believed that separate could never be equal. Lavergne recounts the acrid correspondence between Marshall and Carter Wesley, the owner/editor of the Houston Informer. Wesley favored equalization of existing and new African-American institutions. In 1947, more than 60 percent of Texasʼ African-Americans favored the creation of a black university over the desegregation of UT. Navigating this rift challenged the NAACPʼs lawyers.

What are the "rules of fair play" in a field that attracts scholars from various disciplines? This was one of the themes of Julian Zelizer's reply to a reviewer, Barry Blechman, in a recent issue of the Journal of Policy History. Without having read the book at issue, Arsenal of Democracy: The Politics of National Security—From World War II to the War on Terrorism (New York: Basic Books, 2008), I can't comment on the validity of Blechman's critique or the merits of Zelizer's reply, but I wanted to call attention to the important questions that the exchange raises for those working in interdisciplinary fields.

At the risk of oversimplification, Blechman sees in Arsenal of Democracy a book that "report[s] the main events" but fails to deliver an argument with "bite." Zelizer opens his Reply with this observation:

An important component to successful interdisciplinary scholarship, if the field is to work, is for scholars to take other disciplines on their own terms. Early in the development of the field, conversations too often revolved around historians dismissing social scientists for just presenting "abstract, timeless models" and flat, ahistorical theories, while social scientists dismissed historians for "just telling stories" and not providing theories and analysis.

Further into his Reply, Zelizer sets forth what he believes historians do:

The work of the historian is to provide a complete narrative about the events, personalities, and turning points that define key issues. Historians put together the narrative based on extensive archival research and avoid attempting to impose monocausal theories on the past. As an undergraduate, one of my advisers, Morton Keller, liked to quote Henry James, who said the problem with theories is that they leak at every joint. While I like my history more analytical than many of my colleagues, I think Keller had an important point. What is most interesting is how different forces interact in specific moments, not how one is more important than another.

Thus, Zelizer makes no effort to refute Blechman's charge that the book lacks a "policy prescription." In Zelizer's view, advancing that type of argument is "not what the historian does."

"In the end," Zelizer concludes, "Blechman is looking for a very different kind of book than he will find from most historians. That is a legitimate desire, but it is also important . . . to realize that the way this field works best is not by demanding that one discipline adopts the format and style of the other but, rather, to understand how each can contribute to a richer understanding of the important subjects of the day."

I'm sympathetic to this point. (I also think it's fair to demand scholarship in any "format" or "style" to advance an argument that is clear, well evidenced, and appropriately nuanced.) I wonder how it translates to a field, like legal history, in which everyone is "doing history," but not everyone would agree on "what the historian does."

For the full exchange, see the Journal of Policy History 22, no. 3 (2010): 374-84.

betray a confusion about the nature of judicial greatness. In some places Feldman criticizes the justices for failing to advance liberal political goals (great=liberal); in other places he criticizes them for making up the law to suit their political preferences (great=impartial). Feldman is hardly alone in this respect: this is a central failing of constitutional law scholarship. All that is clear is that the justices’ disagreements shaped constitutional debate for decades (thanks in part to a cadre of worshipful judicial clerks who later became professors). Whether for good or for ill, is hard to say.

David J. Garrow reviews JUSTICE BRENNAN: Liberal Champion by Seth Stern and Stephen Wermiel in the Washington Post. Garrow concludes: "Scrupulously honest and consistently fair-minded, "Justice Brennan" is a supremely impressive work that will long be prized as perhaps the best judicial biography ever written."

Jones and Meyer make a good case that Bellamy’s original pledge was more elegant and rhythmic than today’s clause-laden version. They are less effective in explaining how the former “Youth’s Companion Pledge of Allegiance” evolved from a vaguely progressive one-off promotional spot into a mandatory childhood rite of passage and a political weapon....As a result, the book reads more like an amateur hobbyist’s guide to pledge-related happenings than a fully realized history of American patriotism and national identity.

On Tuesday, November 2, 2010, John Q. Barrett, St. John’s University School of Law, will deliver the lecture, “Robert H. Jackson: Lawyer, Justice, Nuremberger … New Yorker,” as part of this year’s Stephen R. Kaye Memorial Program at the New York City Bar, 42 West 44th Street, Manhattan. The even is sponsored by Historical Society for the Courts of the State of New York. A reception commences at 5:30 p.m. and the program at 6:30 p.m. These events are free and open to the public. On-line registration is here.

Friday, October 15, 2010

G. Edward White, the David and Mary Harrison Distinguished Professor of Law at the University of Virginia School of Law, will deliver the 2010 Hendricks Lecture in Law and History at the Washington and Lee University School of Law on Thursday, October 21. His topic will be “Recovering the Legal History of the Civil War.” The event is free and open to the public. More.

The Lemelson Center's Fellowship Program and Travel to Collections Awards support projects that present creative approaches to the study of invention and innovation and draw upon the holdings of the Archives Center and curatorial divisions at the National Museum of American History. Projects may include, but are not limited to, historical research and documentation projects resulting in publications, exhibitions, educational initiatives, and multimedia products. Both programs provide access to the Smithsonian's vast artifact and archival collections, as well as to the expertise of the Institution's research staff. The Center offers fellowships and travel grants to pre-doctoral graduate students, post-doctoral scholars, and other professionals who have completed advanced training.

The Archives Center holds more than 20,000 feet of archival materials. The collections are particularly strong in documenting the history of technology, invention, and innovation in the nineteenth and twentieth centuries. Both individuals and companies are documented in subject areas including railroads, pianos, television, radio, plastics, ivory, and sports equipment. One of the largest collections is the Western Union Telegraph Company Records, ca. 1840-1994. Other collections of significance include the Earl S. Tupper Papers, documenting the iventor Tupper, and his invention, Tupperware; the Darby Windsurfing Collection, 1946-1998, documenting the invention of the sailboard; and the Records of Small Beginnings, Inc., a medical supply company that designs, invents, manufactures, and distributes products for premature infants. A comprehensive list of Archives Center collections is here.

The Lemelson Center Fellowship Program annually awards 2 to 3 fellowships to qualified researchers. Fellowship tenure is based on the applicants' stated needs (and available funding) up to a maximum of ten weeks. Fellows are expected to reside in the Washington, D.C. area, to participate in the Center's activities, and to make a presentation of their work at the museum. Stipends for 2011-2012 are $575/week for pre-doctoral fellows and $870/week for post-doctoral and professional fellows. Applications will be accepted from 1 October 2010 thru 14 January 2011 and notifications will be made by 15 April 2011. Fellows can begin their residence at the museum on or after 1 June 2011. Application procedures and additional information are here.

The Lemelson Center Travel to Collections Program annually awards 4 to 5 short-term travel grants to encourage the use of its invention-related collections. Awards are $150 per day for a maximum of 10 business days and may be used to cover transportation, living, and reproduction expenses. Only applicants who reside or attend school beyond commuting distance of the National Museum of American History are eligible for this program. Awards may not be used to extend other Smithsonian appointments. Only one award can be offered to a visitor within a twelve-month period. Applications will be accepted from 1 October 2010 thru 30 November 2010 and will be announced by mid-December 2010. Recipients must commence their research at the museum within one year of being notified of the award. Recipients are asked to submit a short report following their research and provide the Center with a copy of any publications resulting from their funded research. Application procedures and additional information are here.

Browsing the Chronicle of Higher Ed website, I was excited to see a piece on making the transition from graduate student to faculty member. I got my first small taste of this exciting -- and terrifying -- experience when, as a fellow at Penn Law, I taught courses to students who just a few years prior would have been my colleagues. Over the past few months, I've also watched friends make the leap to tenure-track positions. They send harrowing reports from the front, some predictable (staying up late to write lectures, navigating departmental politics) and others not (learning to write lectures in the presence of gigantic spiders). With hard work and a sense of humor, they all seem to be managing, but I think they could still use some friendly advice. Readers, do you have any tips for surviving this big transition?

Image credit: President Obama as a young professor at the University of Chicago Law School.

Thursday, October 14, 2010

For those who are unfamiliar with Agee, here's an excerpt from a 2008 New York Times obituary:

Philip Agee, the former Central Intelligence Agency officer who turned against the agency and spent years exposing undercover American spies overseas, died Monday in Havana. He was 72.. . . .Mr. Agee, whose disillusionment with his work at the agency led him to embrace leftist views, had spent nearly four decades as an avowed enemy of American foreign policy and particularly of the covert intelligence work that supported it.. . . .

His 1975 book, “Inside the Company: CIA Diary,” infuriated American officials by identifying about 250 officers, front companies and foreign agents working for the United States. His example inspired several more books and magazines, including Covert Action Information Bulletin, written by close associates and sometimes with Mr. Agee’s help, which published the names and often the addresses of hundreds more agency officers working under cover around the world.

The exposés of Mr. Agee and others led Congress to pass the Intelligence Identities Protection Act of 1982, which made it a crime to intentionally reveal the identity of a covert intelligence officer.

The Tamiment Library is located at 70 Washington Square South (between LaGuardia and Green), 10th floor, New York, New York. To RSVP please contact: zk3@nyu.edu

With the AALS Recruitment Conference coming up, folks in various places are dispensing advice about how to survive the interview gauntlet. I’ll add something very practical to the mix: what to pack to make the trip easier.

As an all-too-frequent traveler, I’ve developed my travel strategies over many years. Here’s what I wish I’d figured out before my AALS experience:

When deciding what to pack, your goal should be to figure out what you can’t live without, and how to make sure you have it without relying on anyone else.

If you can’t carry on a serious conversation without having had breakfast, do you really want to rely on room service arriving on time, or the nearest Starbucks not being overcrowded? If you can’t start the day without coffee, are you sure the hotel coffee-maker variety will have enough punch?

The solution? Do what people who fly for a living do: “‘I’m not wasting my hour of preflight looking for something to eat,’” a pilot told the New York Times, “explaining that he seals bananas, bread and plastic containers of olive oil in plastic bags and tucks them inside his packed shoes. A surprising number of pilots and flight attendants say they always carry food.”

I protect my quiet time in the morning by bringing breakfast. My favorite stash is packets of instant oatmeal and raisins. If the hotel room has a coffee maker, that’s the source of the hot water, and a hotel coffee cup is your cereal bowl. If you won’t have a coffee maker, bring an infusion heater and a metal or ceramic cup.

Now about the caffeine. Sometimes hotel room coffee is ok, sometimes it is terrible. Often, there’s not enough – especially if you want to be able to take a mid-day coffee break without standing in line at Starbucks. I used to travel with ground Peet’s coffee, a one cup drip cone filter, and some coffee filters. I made great coffee this way, but I am now more interested in skipping the time and the mess than being a purist. And so I must confess that I’ve invested in Starbucks Via instant coffee. If you want a quick, drinkable caffeine hit, this is the simplest way to go. If you must put something in it, you can find packages of single-serving Coffee Mate at the grocery store.

Other things to pack:

In case you end up with only 20 minutes for lunch, you’d better have your own supplies. Consider granola bars or nuts and apples, or whatever works for you.

Rather than relying on hotel internet access, take printouts of anything essential, in case the wireless connection is not good.

As for everything else in your suitcase, this may not be the weekend to work on traveling especially light. Bring an extra shirt or two. Bring your tennis shoes to go for a good walk at the end of the day to clear your head.

The Republic of Indian Stream: Frontier ConstitutionalismRobert Tsai, Professor of Law, American University Washington College of LawComment: James Henretta, Professor of History, University of Maryland

Biological Weapons, Pandemic Disease, and Quarantine Law in the United StatesLaura K. Donohue, Associate Professor of Law, Georgetown University Law CenterComment: Stephen Vladeck, American University, Washington College of Law

Civil Liberties and Civil Rights in the Hughes CourtMark V. Tushnet, Nelson Cromwell Professor of Law, Harvard Law SchoolComment: David Bernstein, Foundation Professor, George Mason University School of Law